Summary: The Council has conceded there was fault in a building control officer’s work. However, it has refunded the complainant’s fee, and confirmed it is making service improvements. Although the complainant considers the officer’s work was more inadequate than has been recognised by the Council, the Council has investigated the matter properly, and further investigation by us is unlikely to provide a different outcome. For this reason, we have completed our investigation.

The complaint

1. The complainant, to whom I will refer as Mr R, asked the Council’s building control service to inspect work on an extension to his house. He complains the building control officer did not identify dangerous flaws in the builder’s work, which he then had to employ a different builder to put right.
2. Mr R seeks compensation for this, and is also concerned there are other buildings in the area which may be unsafe because of an inadequate inspection by the officer. He also complains the Council is unwilling to take further action against the builder.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. We cannot investigate a complaint if it is about a personnel issue. (Local Government Act 1974, Schedule 5/5a, paragraph 4, as amended)

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How I considered this complaint

6. I reviewed Mr R’s correspondence with the Council.
7. I also shared a draft copy of this decision with each party for their comments.

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What I found

8. In September 2019, Mr R commissioned a firm of builders to construct an extension on his house. He also submitted a building control application to the Council.
9. A Council building control officer, to whom I will refer as Officer M, visited Mr R’s home several times in October and November. On each visit he noted the work which had been completed to that point. He recorded giving some minor advice to the builders, but did not identify any serious problems with the work.
10. In December, Mr R’s architect emailed Officer M. She said there had been some issues with the builder in relation to glazing.
11. In January 2020, Mr R terminated the builder’s contract with the work unfinished, because of his dissatisfaction with various aspects of the work. He employed a different builder, who, upon investigation, concluded the previous work was so sub-standard the building was now structurally unsafe. Officer M visited the site again on 6 February and confirmed the previous builder’s work was uncompliant with building regulations.
12. Mr R contacted his MP, who forwarded his message to a local Councillor. The Councillor in turn referred the matter to the Council’s Director of Planning, to whom I will refer as Ms B.
13. Ms B emailed Mr R on 20 February, and provided a copy of the building control case notes to date. She explained the building control process, and that it does not perform the same role as a project manager or clerk of works, but instead takes a view on a ‘snapshot’ of the situation during its visits. She said Officer M and another officer had visited several times, but the problems which were later identified were not visible during their visits. Ms B offered to arrange a meeting with Mr R if he wished, and also asked him to submit any information he had about other people who might have had work done by the original builder.
14. Mr R replied to Ms B on 2 March and asked her to register a stage 1 complaint. He disputed some of Officer M’s notes, and said he had photographs which showed that some of the structural work was still exposed during his visits, when the officer’s notes said the builder had already rendered over it or laid concrete. He also complained Officer M had said he would not typically highlight problems to the owner, to avoid them further costs in seeking rectification.
15. Ms B emailed Mr R on 30 March to provide a stage 1 response, after a meeting between them at the Council’s offices.
16. Ms B said the Council had reviewed Mr R’s photographs. She acknowledged one of Officer M’s notes said a concrete floor had been laid on the relevant visit, while Mr R’s photograph (taken the next day) showed it had not. This and other photographs also showed flaws in the drainage system which the builders had laid, as well as flaws with insulation.
17. Ms B said the evidence about the structural work was ambiguous, and noted that part of the work was obscured by debris and equipment, making inspection more difficult. However, she accepted the Council should be more vigilant in such situations in future. She also said the Council accepted Officer M should have identified the flaw with the drainage, and informed Mr R of this at the time.
18. Ms B said a senior Council officer had interviewed Officer M, and he was “adamant” the floor had been laid during his visit. The Council had investigated and determined its case management system could potentially allow notes to be recorded under the wrong date, which might explain the discrepancy. Ms B said the Council was seeking to replace this system, because of this and other flaws. Either way, she said the Council was confident Officer M would not purposefully make an inaccurate record.
19. Ms B explained responsibility for the quality of the work lay with the builder. She also said she could not accept a claim for negligence through the complaints procedure, which was instead a matter for the Council’s insurers. However, she said the Council would implement several improvements, including being more vigilant on visits, making clear notes, and informing owners of flaws and following them up at the time. She also offered to refund Mr R the £622 building control fee.
20. Ms B informed Mr R she had also discussed the matter with the Council’s Trading Standards service, which had explained it was a civil matter of a breach of contract between Mr R and the builder. She noted the Citizens Advice Consumer Services (CACS) had informed Mr R of his consumer rights, and that CACS had also referred the matter to Essex Trading Standards, as this was the local authority area in which the builder was based.
21. As the builder was not based in the Council’s area, its own Trading Standards service could not take action against it. However, the Council had logged the matter on a national intelligence database.
22. Mr R raised a stage 2 complaint on 5 April. He accepted the Council’s offered reimbursement of the building control fee, but said he did not consider this resolved the complaint.
23. Mr R again expressed doubts about Officer M’s observations, as he did not consider they were consistent with the progress of the build at the time of visits. Mr R questioned whether the obstructions visible in the photograph should reasonably have been enough to prevent vigilant inspections, and criticised Officer B’s failure to inform of the problems he had noted at the time.
24. Mr R said the drainage problem was significant, as it had remained unresolved, it would have caused a flood underneath the completed extension and required significant work to resolve.
25. Mr R also said Officer M had been untruthful in his interview with Ms B, as he had told her he had never met the builder before, while Mr R recalled Officer B saying he was familiar with the builder during one of his site visits.
26. The Council gave its stage 2 response on 13 May. It explained in more detail the role of building control, and that its purpose was not to provide site supervision or a guarantee of the quality of the work, but simply take a view whether the work was likely to be compliant with building regulations. To guarantee work, it is necessary to employ a project manager or clerk of works, which the Council understood Mr R had not done. The Council said some of the ambiguity about the work, which it had discussed in its stage 1 response, would normally be a matter for the project manager or clerk of works to address.
27. The Council said it was common practice for building control officers to raise any problems with the builders, in the expectation they would feed this back to the owner, but reiterated it would change its processes to ensure officers informed the owners directly in future. It also reiterated the other service improvements it had made.
28. The Council said Officer M maintained he did not know the original builders, although he had said he recognised two labourers working on the site. Officer M also confirmed he knew Mr R’s new builder, and had acknowledged this during a site visit.
29. The Council repeated its view Mr R had misunderstood its responsibilities in building control, and referred to caselaw which confirmed the Council was not liable for economic loss arising from a failure to ensure a building complied with the regulations. The Council confirmed Mr R had now completed its complaints process, and explained he could now approach the Ombudsman if he wished to pursue the matter further.
30. Mr R referred his complaint to the Ombudsman on 1 September.

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Legislative background

31. Most building work, whether new, alterations, or extensions requires Building Regulation approval. The Building Act 1984 is the primary legislation under which the Building Regulations and other secondary legislation are made. The legislative framework of the 'Building Regulations' is principally made up of The Building Regulations 2010 and The Building (Approved Inspectors etc.) Regulations 2010.
32. The Regulations set standards for the design and construction of buildings to ensure health and safety for people in and about those buildings. 'Approved documents' give examples of how the Regulations can be met, but these examples do not have to be followed.
33. Primary responsibility for building work rests with those who commission it and those who do the work. When carrying out their functions, local authorities will visit at various stages, but they are not required to do so. The number and timings of any inspections may vary by local authority and type of development.
34. Local authorities will be not be present for the great majority of the project and do not act as a ‘clerk of works’. On request and when satisfied after taking 'all reasonable steps' that the Regulations have been met, they must issue a completion certificate. This is not a guarantee that all works have been done to the required standard. Building Regulations provide a means for the local authority to maintain building standards in general, rather than imposing a duty to maintain standards in each particular case.
35. There have been court challenges where owners of buildings have sought to hold council building control authorities liable for defects in building work they have inspected. The courts have decided that council building control authorities are not liable to ensure compliance with building regulations – the duty to comply with regulations lies with the building owner, who may be able to take legal action for the consequences of poor/non-compliant work against their contractor, architect or builder.

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Analysis

36. I appreciate the reason Mr R is dissatisfied with the building control service he received from the Council; and, indeed, the Council has conceded it could have provided a better service in this instance. It follows, therefore, I find fault by the Council here, and that this fault caused Mr R an injustice.
37. However, I do not consider there is anything further the Ombudsman can add to the Council’s own investigation.
38. As the Council has explained, the purpose of building control is to ensure general compliance with building regulations. It is not to protect private interests in specific cases and does not function as on-site supervision, which is instead the role of a project manager or clerk of works. A completion certificate does not provide a guarantee of the quality of the work.
39. The courts have decided that councils are not liable for the cost of correcting a defect resulting from any failure to ensure compliance with the building regulations. Liability rests with the owner of the building, and those carrying out the work (Murphy v Brentwood District Council (1990) and Governors of Peabody Donation Fund v Sir Lindsay Parkinson & Co Ltd & ORS (1984)).
40. This is not to say the Ombudsman could never recommend a financial remedy, where he finds fault by a council in the exercise of its building control functions. But this would not take the form of compensation or reimbursement for the complainant’s costs, because of the courts’ decision councils should not bear this liability.
41. We may instead recommend, for example, a full or partial refund of the complainant’s building control fee. But the Council has already offered this, and so I do not consider there is any further scope for a financial remedy here.
42. Mr R has raised doubts about Officer M’s comments, in particular whether elements were still visible during his visits, and whether he was familiar with the original builder.
43. The Council has acknowledged that, on one occasion at least, Officer M’s note of his visit did not correspond with the photograph Mr R took the following day. The Council has considered a range of explanations for this, including a flaw in its casework management system, and the possibility Officer M had recorded the wrong date for his visit, although it does not appear to have drawn a firm conclusion.
44. With regard to what was visible on the other visits, the Council considers Officer M’s observations were reasonable, given the obstructions on site, although it has committed to ensuring officers are more vigilant in future.
45. The Council has also investigated whether Officer M knew the original builder, and has reflected his explanation he was referring to the labourers on site, not the contractor himself.
46. Again, I appreciate Mr R is not entirely satisfied with these explanations. However, further investigation by the Ombudsman is unlikely to provide a different answer to these points. My role is to investigate the Council as a corporate body, not Officer M personally; and while I might be able to criticise the Council if I considered it had not investigated the matter thoroughly, I do not consider such a criticism is warranted here. The Council has interviewed Officer M, highlighted where his responses do not correspond with the evidence, weighed different explanations for this, and provided clear reasons for its decisions. This is precisely what the Ombudsman would expect to see, and it is not for us to direct the Council to take a different view.
47. In addition to this, the law specifically prevents the Ombudsman from becoming involved in personnel matters. So we have no power to recommend the Council take any kind of action against Officer M, regardless of any other findings I might make here.
48. I note Mr R says he is concerned there may be other work signed off by Officer M which is unsafe. He gives one specific example of another household nearby, and says it has now been established the (same) builder’s work on this property is also structurally unsound.
49. In her original email to Mr R, Ms B asked him to provide the details of anyone else he knew who might be similarly affected. There is no indication whether the Council took any further action here, but as this would be a confidential matter between the Council and a third party, I would not expect it to disclose this to Mr R anyway.
50. Either way, I cannot see what further recommendation I could make here. There is a disagreement between Mr R and the Council over the degree to which Officer M’s inspections were inadequate – a disagreement I cannot resolve. Again, the role of building control is not to provide a guarantee of the quality of building work. It is a light touch process. It is unfortunate this means flaws, even significant ones, can be missed, but this is the nature of the process, as recognised by the courts.
51. Taking this together, I have no reason to argue the Council should generally consider Officer M’s work to be suspect, or seek to review it.
52. Mr R also criticises the Council for failing to “blacklist” the builder. However, the Council has no power to simply stop the builder from working, even with evidence of substandard work.
53. Mr R says he has received a response from Essex Trading Standards, which explained that, because of irregularities in how the business is registered, it is difficult for it to pursue an investigation. Mr R considers the builder has exploited loopholes in the law and weaknesses in the enforcement regime to continue operating unlawfully.
54. I am not unsympathetic to Mr R’s concerns here. However, even if it is possible Essex Trading Standards could be doing more about the situation, this is not something I can investigate here, because Mr R’s complaint is about a different local authority. The Council says it has shared intelligence about the builder on the relevant national database, which it appears is the limit of its powers in this respect.
55. I should add, although this is not a point Mr R has raised, even if Trading Standards did undertake an investigation of the builder, this would not provide a route of compensation or reimbursement for him. Trading Standards is responsible for law enforcement; it is not a consumer rights or advocacy service.

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Final decision

56. I have completed my investigation with a finding of fault causing injustice, but which has already been remedied by the Council.

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Investigator's decision on behalf of the Ombudsman